Can you really afford to take the risk?
We are often asked whether or not Owners Corporations are required to obtain Work Health & Safety (WHS) reports for their complexes. Are safety reports really worthwhile? In short, yes. We recommend all our schemes obtain regular reports. Not only is it best practice, it is an added measure to help ensure all common property is safe and accessible for residents and their visitors.
One Owners Corporation in Sydney’s prestigious northern suburbs learnt a painful and costly lesson… the hard way. To make matters worse, the incident was foreseeable and preventable.
Case Study from NSW
Late 2016 a new resident moved into their apartment after hours, and on a weekend, which was in breach of the House Rules adopted by the Owners Corporation. While they moved in, the new resident left a protective mat covering the floor of the elevator. An elderly resident entered the elevator and consequently tripped on the protective mat, suffering a severe fall which fractured her shoulder.
Despite the fact that the new resident acted in breach of the House Rules, which prohibited move in / move outs during weekends and without the building manager being on-site, the Court found that the Owners Corporation was principally responsible.
As a result, $95,000 in damages (plus costs to be decided) was awarded to the injured, elderly resident.
The Court ruled that the Owners Corporation owed its residents a duty of care to contain the known potential risk of damage and injury caused by removalists using the building’s lift. This included compliance with its House Rules, checking the adequacy of the protective mat and the safety of entrance/s while removals were occurring in the lifts.
Damage had been caused by removalists to the common property in this particularly building before. The Court took this into account, as well as the fact that a Strata Committee member had observed the moving in process (in breach of the House Rules) and took no steps to prevent the move in from occurring.
No weight was placed on the fact that the new resident acted in breach of the moving in / moving out procedure. Despite the existence of the procedure, and its flagrant breach, the Court found that the Owners Corporation acted negligently in failing to protect the elderly resident from the accident.
Lessons for all Owners Corporations
- House rules, procedures and codes of conduct sound good on paper, but in fact, have no legal status whatsoever. Owners Corporations should ensure these documents are re-packaged, formatted, consolidated and passed as by-laws.
- Owners Corporations must take steps to actively enforce the by-laws. It will not be enough to simply have a by-law registered on title. The Owners Corporation and Strata Committee must actually take active steps to ensure that the by-laws are complied with.
Building managers and caretakers should read this case study and take note of the consequences. The risk was foreseeable and preventable.
For all Owners Corporations without a building manager or caretaker, extra care needs to be taken.
At all times, common property areas must be able to be accessed by residents without accident or incident.
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